Unearned wages as an element of seaman’s damages: End of the voyage vs period of employment


period of employment. If the articles are unclear or there are no articles, courts will generally look to the intent of the parties as expressed in collective bargaining agreements. “Opt-out” clauses, where either the seaman or the employer can terminate the seaman’s employment with only a short notice period, tend to show that there was no definite term of employment – and therefore unearned wages would cease at the end of the voyage.


Markus McMillin Claims executive


It has long been the law that a seaman who falls sick or is injured in the service of the ship is entitled to wages through to the end of the voyage, the length of which is usually determined by the articles and collective bargaining agreements. The Circuit Court opinions vary. Some have described the end of the voyage as “when the ship arrived at her last port of destination” or “when the cargo is discharged”.


On the Great Lakes it is a longstanding custom to pay unearned wages only on a trip from loading port to unloading port or vice versa. For foreign voyages, the seaman is customarily bound for a single voyage, and not a definite period of time.


On coastwise voyages, where articles are commonly entered into for a period of time that encompass multiple short voyages, the seaman is entitled to unearned wages for the “period of employment.” Courts have held that the period of employment is the entire period of time contemplated by the contract when the seaman’s illness or injury has not reached the maximum medical improvement at the expiration of that period.


But what if the articles do not contain a definite term of employment or they were never signed? What determines the length of the voyage then? The burden is on the seaman to show a definite


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However, other clauses in a collective bargaining agreement which may make a period of service mandatory for certain crew positions can override the “opt-out” language. In one such case, a court found that an injured seaman who, after his injury aboard the ship, later accepted some other limited temporary employment during the remainder of his 90-day mandatory service period, was not precluded as a matter of law from receiving unearned wages from the original employer.


The court held that this was because the seaman was entitled to the unearned wages under the collective bargaining agreement terms (although the court held he could not “double-dip” and receive unearned wages for the time he was actually engaged in the temporary employment). In short, employers must make sure the collective bargaining agreements are consistent throughout (and that they don’t conflict with the terms of the ship’s articles, if articles have been signed).


Overtime, tips & vacation pay


As a matter of law, overtime pay is factored into unearned wage calculations for the purposes of an injured seaman’s compensation to the extent it is readily ascertainable. In other words, a seaman is not entitled to overtime pay when the actual earning of overtime is an event which might or might not occur. If overtime wages are part of the collective bargaining agreement, this inclusion serves to provide a level of certainty that will survive judicial scrutiny.


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